What’s at stake as the Supreme Court considers banning race in college admissions: ‘Basic fairness’

The Supreme Court heard oral arguments on Monday in two cases that could determine whether colleges can consider race in their college admissions process, a decision that could drastically affect how colleges admit students, and affect racial diversity far beyond higher education.

The case deals with the admissions policies of Harvard and the University of North Carolina at Chapel Hill. Students for Fair Admissions (SFFA) sued both schools, saying their policies, which consider race as a factor in admissions, discriminated against Asian American applicants.

SFFA first sued Harvard in 2014, and is now asking the Supreme Court to reverse its landmark 2003 decision Grutter v. Bollinger, who allowed race to be considered as one of the factors in college admissions because he believed the diversity of the student body was “compelling interest.”

In writing the opinion in the Grutter case, Justice Sandra Day O’Connor wrote that “race-conscious admissions policies should be limited in time,” and added that “we expect that 25 years from now, the use of racial preferences will no longer be necessary.”

PREVIEW ANALYSIS: THE SUPREME COURT To hear the challenge to consider race in entering college

The Supreme Court will hear two cases on affirmative action.

The Supreme Court will hear two cases on affirmative action.
(AP Photo/J. Scott Applewhite, File)

Now, 19 years later, the Supreme Court is revisiting whether racial preferences are, in fact, still necessary.

“The Supreme Court is going to once and for all answer the question of whether our nation’s colleges and universities can consider race in the admissions process,” Kimberly Herman, general counsel for the Southeast Legal Foundation, told Fox News Digital.

It’s “one of the most important Supreme Court cases ever heard in higher education,” Danielle Holley, Dean of Howard University Law School told Fox News Digital. “For selective admissions colleges, that means if the Supreme Court finds against Harvard or UNC, those colleges can no longer consider race in any way in admissions.”

The results will have a significant impact on diversity on college campuses, Tiffany Atkins, a law professor at Elon Law School, told Fox News Digital.

“From my perspective as a law professor and attorney, this is important because it affects the students I teach, the conversations we have, the richness of the conversations in the classroom,” Atkins said.

The consequences of the Supreme Court ruling in favor of SFFA will be far reaching, Atkins added, potentially affecting the pipeline for professions like doctors and lawyers.

Yvette Pappoe, an assistant professor of law at the University of DC, said eliminating race-conscious recognition would have “devastating consequences for people of color, minorities in general,” and strongly advocated for them to continue.

“We absolutely still need a race-conscious admissions program. The whole point of affirmative action is not to reward groups that have historically benefited. The whole point is to remedy past discrimination, whether intentional or not, and that has not been remedied, whether we like to admit it or not, ” said Pappoe.

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Teachers Union, Major Corporation Requests High Court To Allow Affirmative Action In College Admissions

“Banning such a program will harm students, it will harm schools, it will harm society in a related way. The admissions process. And finally, it will lead to racist stereotypes about people of color, including and especially Black women,” added Pappoe.

If the Supreme Court rules for the SFFA, Pappoe predicts it won’t take long for freedom on campuses to be affected.

“In the blink of an eye, I can see that the university that has this policy that no one wants to have this policy now will have a reason to drop this policy. This can happen in this current cycle,” he said, predicting that it can take less than a year.

A Harvard banner hangs outside the Memorial Church on the campus of Harvard University in Cambridge, Massachusetts, USA, Friday, September 4, 2009.

A Harvard banner hangs outside the Memorial Church on the campus of Harvard University in Cambridge, Massachusetts, USA, Friday, September 4, 2009.
(Photo by Michael Fein/Bloomberg via Getty Images)

Because of this, Jonathan Feingold, an associate professor at Boston University School of Law, said it should be “concerning” that the Supreme Court could strike down affirmative action on college campuses.

“For anyone committed to racial diversity on campus, it must be concerning to think about a future where the Supreme Court prohibits any university from engaging in race,” he said. “I think anyone who likes a racially diverse campus, among other elements of diversity, [it] warrant concern.”

The Supreme Court specifically looked at education in considering these cases, but its decision could have an impact on other industries as well.

Feingold emphasized the importance of affirmative action in employment, saying it remains “a powerful mechanism to make the process more fair and neutral, so that the people who should have been there from the beginning are now.”

Atkins also warned that depending on what the court says in its decision, there could be a “domino effect” in other areas.

“Here, we are talking about only the context of education. However, if they are holding that consideration of race is a violation of the equal protection clause, then I think that we will see a domino effect in other cases that may be touched,” said Atkins.


However, this is not necessarily a bad thing, Heritage Foundation senior legal fellow Hans von Spakovsky told Fox News Digital. “I hope that wherever the racetrack is used for purposes such as giving scholarships, hiring, will realize that they can’t do that.”

“What the people who support this have done is set up the same system of racial deprivation that our civil rights laws were intended to end, and the only thing they’ve changed is who benefits and who is harmed,” added von Spakovsky.

Harvard’s policy may even violate the Civil Rights Act, Angela Morabito, a spokeswoman for the Defense of Freedom Institute told Fox News Digital.

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“It’s really painful what Harvard and other elite institutions are doing is they’re discriminating in the admissions process based on race,” Morabito said. “And under Title VI of the Civil Rights Act of 1964, it’s illegal for any agency to receive federal funding to do that. It’s just not right.”

And while affirmative action advocates warn of a decline in diversity on campuses, Jeremy Rovinsky, an attorney and former dean of the National Paralegal College, predicts that eliminating race as a consideration in admissions policies could increase the number of Asian Americans at the top. ed institute

“I don’t know that anyone can really predict the future… but I think, at least in the short term… [SFFA]then we will see more Asian representation at Harvard, and more Asian representation, therefore, coming into the corporate world from Harvard and from top schools.

Edward Blum, President of Students for Fair Admissions said if the Supreme Court rules in favor of Students for Fair Admissions, it will “restore colorblind legal covenants to America’s universities and colleges.”

“If the Supreme Court rules that race is unconstitutional, then we will go back to the principles of what our civil rights movement was about,” he added. “And those principles are that a student’s race and ethnicity should not be used to help him or to harm him in gaining admission to a college or university.”

Virginia Lieutenant Governor Winsome Sears submitted an amicus brief to the Supreme Court in the case, calling the court’s previous decision in the Grutter case “harmful,” and noting the 25-year expiration date. Sears told Fox News Digital that it’s important to create a K-12 education system that works for everyone, so race isn’t necessary.

“Ultimately, history will prove us right, because we’ve tried discrimination based on race, and it hasn’t worked,” he told Fox News Digital. “What is this about educational opportunities. We must ensure that all children have access to their opportunities, so they will be able, themselves, without race-based policies, to be afforded the ability to gain entry to this university. That is the problem, and the children do not have it. ”

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Supreme Court in Washington.

Supreme Court in Washington.
(AP Photo/J. Scott Applewhite)

While the Supreme Court is not expected to announce a decision on the case until 2023, the new decision shows that the justices are not afraid to seize the precedent set, and even their take on the case reflects a desire to overturn the Grutter case.

“I think the Supreme Court chose to hear it because the composition of the court was different,” Holley said. “That’s the only change. This plan is no different from other plans, the only difference is that the composition of the court has changed, that’s why many people believe the court is primed to strike down that long-term precedent.”

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The court chose to take the case leading Herman to believe they could rule in favor of the SFFA, reversing past precedent. “I would hope that since they decided to take this case, they are ready to look back at the precedent from 2003 and they are ready to say once and for all that our Constitution requires color blindness and that the color of a person’s skin should not be considered when it comes to college,” he said.


David Bernstein, Executive Director of the Liberty and Law Center at the Antonin Scalia Law School at George Mason University also said he predicted the Court would find Harvard and the University of North Carolina’s admissions plans unconstitutional.

“I think there is any doubt about the court’s desire to be more aggressive about this, it was dispelled by the abortion case,” he said. “When it comes to affirmative action, the elite will cry and scream and be very upset…

Regardless of the prediction, the long-term ramifications of the case will depend on how the court rules, added Bernstein.

“If they issue a very strict opinion banning the use of race in college admissions, and perhaps elsewhere, that could have powerful reverberations,” he told Fox News Digital.

“If the Supreme Court issues a strict decision that bans the use of race completely without any real evidence, it could have a significant effect on how race is used by the government. In the past where they said we don’t like the use of race by the government, but here are some the situation they will use, the loophole will be used by the governing body to continue what they are doing,” he added.

Pappoe also stressed that how wide the ramifications of the decision will depend on how the court writes it.

“If the court … says very specifically that the admissions policy that considers race is unconstitutional, then it is limited. But if the court comes out swinging and says that the policy that considers race in any capacity is unconstitutional, then of course, the cause is wider. net,” he added.


In the end, it comes down to “basic fairness,” Rovinsky said. “What is at stake is, in a sense, basic justice, people being judged for who they are, their achievements, not just the color of their skin, or their racial background.”

Despite the speculation and predictions, Rovinsky said “you never know how the court might decide, the best we can do is speculate.”


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